H-1B "Portable" Employees

New I-9 Handbook Changes I-9 Procedure for H-1B "Portable" Employees

Previously, "credible evidence" of the filing of an H-1B transfer petition by the new employer was deemed sufficient, as the law permits the H-1B beneficiary to begin working for the new employer upon the filing of the new petition. Therefore, employers frequently started employing H-1B transfer employees soon after they file the H1B transfer petition.

Although the law has not changed, USCIS recently revised Form I-9 and issued a new employer handbook, which became effective in April. The new handbook imposes a new requirement for H-1B employers by requiring the employer to wait until the USCIS I-797 receipt notice is received. Only when the employer has received the I-797 receipt notice, which frequently takes 1 to 2 weeks to receive, is there sufficient evidence of employment authorization for I-9 purposes.

Employers who hire employees who were not already in H-1B status still must wait for the H-1B to be approved before it can legally start the foreign national employee.

The new Handbook also requires F-1 students who are authorized to work in the "cap gap" period between the expiration of an optional practical training period and the effective date of a change of status to H-1B to present a new Form I-20 along with evidence of a timely-filed H-1B petition and request to change status to demonstrate employment eligibility. According to agency instructions in the Handbook, F-1 students authorized to work during the cap gap must present proof of a timely-filed H-1B petition and change of status, such as an express mail receipt and a copy of the petition, to their designated school officials (DSO) to obtain a cap-gap I-20. The initial updated I-20 will authorize the student's status and work authorization through June 1, 2009. If the H-1B petition is eventually accepted for processing by U.S. Citizenship and Immigration Services and a Form I-797 filing receipt is issued, the student will need to return to the DSO with a copy of the receipt to obtain a further updated I-20 showing a continued extension.

On January 25, 2018, the White House released a one-page Framework on...

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